Rule forming and rule making

The European institutions are horizontally separated in line with the principle of the division of powers. The executive function is trusted in the European Commission, the legislative in the institutions of the European Parliament and the Council of the EU, the judiciary in the Court of Justice of the EU, the monetary in the European Central Bank, the auditory in the European Court of Auditors. The one institution which complicates things is the European Council, for it performs none of the aforementioned functions yet is the ultimate decider on all things concerning EU politics. The European Council is the formalised body of the heads of state or government of all the Member States. While it does have a president who serves a fixed term, it remains an intergovernmental entity that aims at producing consensual agreements between the national governments on the future direction of the European integration process.

One would expect the executive to be the entity deciding on the political direction of the Union, always in concert with the legislative, and in accordance with the legal order. It is the role of governments to take decisions that influence—indeed determine—their outlook as well as the future options of subsequent governments. For instance, it is up to the United Kingdom’s government to decide on the qualitative features of their country’s referendum on EU Membership: what the exact question will be, whether there will also be a referendum on a possible renegotiated package, what the specific demands may be for changing their relationship with the EU, and so on.

Though the European Commission is the executive, it is not the European government, at least not in the sense we would think of any other government. The Commission does indeed perform almost all of the tasks of an executive, proposing legislation, foreseeing its implementation, providing technical expertise on all areas of policy that fall within its competences, etc. What the Commission lacks is the capacity of taking final decisions on what rules will be created. This power is left with the European Council. It is the latter institution which decides on what the outlook of European integration may be, and which areas of policy require further harmonisation. The Commission takes all necessary measures for realising the European Council’s guidance, typically by putting forth a legislative proposal. Thus, while the Commission is the European “government”, it has an overseer, an institution which provides it with its mandate.

To better describe this kind of institutional order, we may employ terms or phrases that denote what each of the institutions does in the creation of the EU’s rules. Since the European Council does not get involved in the technical aspect of law-making, we may argue that its role is that of rule formation. The European Council forms the rules by virtue of deciding on the direction and scope of future integration. In effect, the European Council instructs the Commission to pursue certain goals. The Commission is tasked with fleshing out in precise detail the specifics of its mandate, usually by means of initiating the ordinary legislative procedure, which involves the European Parliament and the Council of the EU as co-legislative institutions. We can suggest that the legislative process, with all its technicalities and complexity, is where the European Union’s rule making takes place.

Whether this state of affairs is optimal or not remains a matter of one’s judgement. For the present author, this is considered suboptimal even though it does extend an otherwise sound principle: the division of powers. The flaw is identified in the European Council’s accountability structures. One would expect the final decider to be accountable to a body politic commensurate with the reach of its authority, just as a country’s government is accountable to the country’s citizens. The European Council is an intergovernmental entity, which means that any one of its members, the political leader of each Member State, is only accountable to their own citizens. The collection of national leaders is not accountable as a body to a unified citizenry, to a European demos. As will be discussed at the end of this handbook, this reflects the fundamental flaw of the European Union’s current rule-forming-rule-making design: its sovereignty mismatch.

Though the EU is still far from being a federal republic, it could still benefit from a change in the legitimacy and accountability of its supranational decider. Should Treaty amendments be considered in the near future, it would be desirable to reform the relationship between the European Council (and its quasi-legal subset, the Eurogroup) and the rest of the institutions. One can envisage the adaptation of the current bifurcation of powers between European Council and European Commission, so that a new executive could be introduced that would perform the function of forming the rules as well as participate in their making. This would involve a couple of things:

a European Administration as a successor institution to the European Council, preferably a directly elected one or, at the very least, one appointed by the Member States following approval from the European Parliament;

the remodelling of the European Commission into a purely technocratic entity, a public service, tasked solely with providing its technical expertise in the making of legislation, and in being a true “guardian of the Treaties” by monitoring the compliance of Member States with the Union’s legal order.

Currently the European Commission consists of twenty eight commissioners, each from a Member State. These Commissioners are high profile politicians. Though it is understandable that in the spirit of consensus every country gets to have a Commissioner, this set-up is not particularly desirable for at least three reasons: (i) it politicises the Commission, thus creating a tension between its actuality as a political entity and its objective as an impartial guardian of the Treaties, (ii) it forces the Commission’s president to come up with ever more roles to give work to individual Commissioners, so that they effectively end up with seemingly overlapping tasks, and (iii) the European Commission is a purely supranational institution and should have a clear status as such, distinguishing it from other intergovernmental entities.

A reformed Commission would see it reduced in political gravitas, so as to be best suited for the crucial technical role it has to assume. The direct input of Member States is already provided in the legislative institution of the Council of the EU, making any further involvement an unnecessary duplication of representation. In such a new institutional arrangement with a reformed bifurcated executive, a convention of Member States’ leaders would only be foreseen for the purposes of deciding on amendments to the European Treaties.

Understandably, none of these reforms may take place. At this point they remain purely theoretical, even though they are empirically informed from the EU’s peculiarity of having distinct entities that form and then make the rules. Rule formation and rule making can very well be preserved in a Treaty change that will otherwise improve the overall legitimacy and accountability of the supranational stratum of authority, all while respecting—and being in line with—the interests of the Member States.